Parking eye Manchester airport hotel

Kevmanc

All I have received so far is the invoice from parking eye which I appealed and was rejected with the popla number it was on the 14/7/18 and issued on the 19/7/18. I can't remember if I said I was the driver or not but on the rejection letter it doesn't state any names just dear sir/madam

Umkomaas

Kevmanc wrote: »

All I have received so far is the invoice from parking eye which I appealed and was rejected with the popla number it was on the 14/7/18 and issued on the 19/7/18. I can't remember if I said I was the driver or not but on the rejection letter it doesn't state any names just dear sir/madam

If the NtK was issued within 5 days (14/7 to 19/7), why does your POPLA appeal say this?

The NTK sent to myself as Registered Keeper arrived some 3 weeks after the alleged event

Kevmanc

Shall I just remove number 1 as I've not had a ntk yet

Kevmanc

Sorry this is a template I'm editing I'm still going through it. Is the ntk the actual parking charge that was issued to my partner as the registered keeper?

KeithP

The Notice to Keeper is, believe it or not, the first notice issued by the parking company to the keeper.

It can't be much clearer.

Kevmanc wrote: »

All I have received so far is the invoice from parking eye which I appealed and was rejected with the popla number it was on the 14/7/18 and issued on the 19/7/18.

Please can you untangle that sentence and explain exactly how it answers the questions that Umkomaas asked.

Kevmanc

Alleged contravention 14/7/18
Issued on 19/7/18
Received by registered keeper 23/7/18

Redx

so they issued an NTK (Notice To Keeper) by post which arrived with the keeper in less that the 14 days allowed under POFA2012 and presumably has the correct POFA2012 warning paragraph so that it fully complies with POFA2012

THEREFORE, its an NTK , simple as that , which didnt take 3 weeks to arrive , merely a few days to arrive (its an invoice which is the actual NTK)

you need to proof read what you have copied and pasted because when I said BESPOKE, I actually meant BESPOKE

post the finished template, not some halfway house

if you add one lie to the mix they can say all of it is a lie


ps:- stop rushing , the keeper has up to 33 days to upload a popla appeal , so they are nowhere near the deadline

Kevmanc

First of all I'm not rushing I just want to leave myself plenty of time to make sure this is right and second I copy and pasted as it was to make sure I had the correct one. I was in the process of amending it to suit my appeal. I appreciate the help but i just wanted to double check that was the actual NTK as I didn't want to make presumptions and get it wrong. I will just take number one out completely if it's well within the guidelines. I'll post the finished draft soon. Thanks

Kevmanc

I am writing to you to lodge a formal appeal against a parking charge notice sent to myself as registered keeper of the vehicle xxxxxxxx. I was NOT the driver.
I contend that I am not liable for this parking charge on the basis of the below points:





1) The operator has not shown that the individual who it is pursuing is in fact liable for the charge.

In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, POPLA must first consider whether they are confident that the Assessor knows who the driver is, based on the evidence received. No presumption can be made about liability whatsoever. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but I am exercising my right not to name that person.

Where a charge is aimed only at a driver then, of course, no other party can be told to pay, not by POPLA, nor the operator, nor even in court. I am the appellant throughout (as I am entitled to be), and as there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a charge cannot be enforced against a keeper without a POFA-compliant NTK.
The burden of proof rests with the Operator, because they cannot use the POFA in this case, to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot – they will fail to show I can be liable because the driver was not me.

The vital matter of full compliance with the POFA was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:-
Understanding keeper liability
“There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.

There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.''

No lawful right exists to pursue unpaid parking charges from a keeper, where an operator is NOT attempting to transfer the liability for the charge using the POFA. This exact finding was made in a very similar case with the same style NTK in 6061796103 v ParkingEye in September 2016, where POPLA Assessor Carly Law found:
''I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal.''

2) ParkingEye has no standing or authority to form contracts with drivers in this particular car park, nor to pursue charges.

I do not believe that this operator has any proprietary interest in the land such that it has no standing to make contracts with drivers or to pursue charges for breach in its own name. I contend that they merely hold an agreement to maintain signs and to issue 'tickets' as a deterrent to car park users. I put the operator to strict proof otherwise because it cannot be assumed that any agent on site has any more than a bare licence.
I require an unredacted, contemporaneous copy of the landowner contract (including the User Manual which forms a vital part of that contract). This is required so that I may see the definition of services provided by each party to the agreement, as well as any exclusions (e.g. exempt vehicles, users, days or times) as well as defined grace periods; the land boundary and the areas or specific bays enforced; the various contraventions and confirmation of the agreed ‘charge’ which may or may not be £100.
I do not believe that the contract allows ParkingEye to charge visitors £100 for a system or machine error. It is submitted that to charge for this event is highly unlikely to be a feature of the agreement with the landowner. That is why a generic, bland witness statement with a lack of definition of contraventions will NOT counter this argument.
Regarding Section 7.3 of the BPA Code of Practice, I require evidence of full compliance:
“The written authorisation must also set out:
a) The definition of the land on which you may operate, so that the boundaries of the land can be clearly defined
b) Any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation
c) Any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement
d) Who has the responsibility for putting up and maintaining signs and maintaining machines
e) The definition of the services provided by each party to the agreement.”





3) On this day there were issues with the parking machine and text pay service.
The driver parked and upon trying to pay for parking had problems with the machine not accepting card payment. The driver then tried to use to text pay option and sent VRN twice to the number stated to which no reply was received. There was no clear instruction as to what to expect after the text was sent.
The system was complicated because drivers are expected to recall what time they arrived. Such systems have been criticised as unfair and not consumer-friendly. If a machine fault when this machine was certainly malfunctioning caused the system not to accept the pay by text or a fault with the card payment system then that is a matter within ParkingEye’s control, not the driver’s fault, as was found in Claim No C0FC15W4, ParkingEye v Ms G. before Judge Middleton at Bodmin County Court on 26/10/16:

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In this case under appeal now, in all probability, there was a machine failure as in the above similar court case.


4) Breach of the BPA Code of Practice on ANPR.
It is submitted that this charge was not properly given because it breaches the BPA Code of Practice regarding ANPR which requires checks to be made to ensure that a charge is ‘appropriate’ before issuing a PCN.
It would in fact be very easy to identify if this operator had carried out the necessary checks required in the BPA CoP, so I suggest these checks were not made and that the operator has contravened the requirements of professional diligence; a duty of consumer-facing service providers.
I put this operator to strict proof that these checks were made including CCTV of the driver at the machine trying to pay.
And the situation is fully within this operator’s control. As cameras are used to record number plates entering and leaving then they should be connected to the ticket machines. As a number-plate begins to be typed, a truly ‘connected’ system would find the ANPR image and simply require the driver to confirm that this is their vehicle, and the system would show the time of arrival (all details known to the system already).
To charge under these circumstances with a faulty machine, was not ‘appropriate’ or fair and contravenes the ANPR requirements of the BPA CoP.
Further, the signs fail to inform a driver what the ANPR data will be used for. When paying in good faith having typed in the VRN, the driver had no idea that secret camera data would later be used against him to bind him to a charge he knew nothing about and did not agree to. He thought the cameras were there for security, due to the lack of any other information (a black icon showing a camera communicates nothing).
Failure to tell a driver how the data will be used is an ICO breach AND a ‘misleading omission’ of a material fact – prohibited by consumer law, bringing me to my next point:

5). The charge is a penalty, breaches the Consumer Rights Act 2015 and is prohibited/unfair under the CPUTRs. It is not saved by ParkingEye v Beavis.

I am having to guess, as the driver has informed me that the machine was not working properly. No evidence has been produced either way by this operator as to the cause of the issue nor any consistently-stated facts that made £100 charge payable.

This situation is an 'ordinary' contract involving no overstay and no breach of the legitimate interests of the landowner. This was a simple consumer transaction trying to purchase a ticket for parking in good faith and produced by a machine and can be very easily distinguished from the case of ParkingEye Ltd v Beavis.

Indeed, the Judges' findings at the Court of Appeal stage - which were not disputed nor overturned at the Supreme Court, so the findings stand as part of that binding case law - fully support my view that the case of 'Kemble v Farren' remains the binding authority in support of this position. At 47 in the Court of Appeal Judgment, it was held:
''When the court is considering an ordinary financial or commercial contract, then it is understandable that the law, which lays down its own rules as to the compensation due from a contract breaker to the innocent party, should prohibit terms which require the payment of compensation going far beyond that which the law allows in the absence of any contract provision governing this outcome. The classic and simple case is that referred to by Tindal CJ in Kemble v Farren (1829) 6 Bing. 141 at 148: “But that a very large sum should become immediately payable, in consequence of the non-payment of a very small sum, and that the former should not be considered a penalty, appears to be a contradiction in terms, the case being precisely that in which courts of equity have always relieved, and against which courts of law have, in modern times, endeavoured to relieve, by directing juries to assess the real damages sustained by the breach of the agreement.” ‘’

And at the Supreme Court it was held at 14. ''…where a contract contains an obligation on one party to perform an act, and also provides that, if he does not perform it, he will pay the other party a specified sum of money, the obligation to pay the specified sum is a secondary obligation which is capable of being a penalty… ''

At 22, the Supreme Court explored Lord Dunedin’s speech in Dunlop and separated complex cases (Beavis) from ordinary/standard contracts with a transaction and tariff paid at a machine: ''Lord Dunedin's...four tests are a useful tool for deciding whether these expressions can properly be applied to simple damages clauses in standard contracts. But they are not easily applied to more complex cases.''

This is NOT a 'more complex' case by any stretch of the imagination. At 32, it was held that a trader, in this case a parking company: ''...can have no proper interest in simply punishing the defaulter. His interest is in performance or in some appropriate alternative to performance. In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin’s four tests would usually be perfectly adequate to determine its validity.''

Clearly a charge ‘out of all proportion’ to the tariff - is an unfair penalty to the mind of any reasonable man. A huge charge arising under the excuse of an unexplained event such as a machine or system error is unjustified and unfair, if the remedy is out of all proportion with the 'breach' and the (completely different) Beavis case does NOT apply to this argument.

The Consumer Rights Act 2015 supports my position that the failure in performance of the ticket machine and/or failure by the operator to diligently carry out the necessary checks to ensure charges are not issued inappropriately, is unfair and unenforceable:

Link...

- Schedule 2: 'Consumer contract terms which may be regarded as unfair':
’’A term which has the object or effect of inappropriately excluding or limiting the legal rights of the consumer in relation to the trader or another party in the event of total or partial non-performance or inadequate performance by the trader of any of the contractual obligations…’’
''A term which has the object or effect of requiring a consumer who fails to fulfil his obligations under the contract to pay a disproportionately high sum in compensation.''

This charge is clearly punitive and is not saved from breaching the 'penalty rule' (i.e. Lord Dunedin's four tests for a penalty) by the Beavis case, which does NOT supersede other defences. It turned on completely different facts and related only to that car park with its own unique complexity of commercial justification. This case is not comparable.
The Consumer Protection from Unfair Trading Regulations 2008 also supports my position that this commercial practice of charging for their own system failure is unfair:

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’’Prohibition of unfair commercial practices’’: 3.—
(1) Unfair commercial practices are prohibited.
(2) Paragraphs (3) and (4) set out the circumstances when a commercial practice is unfair.
(3) A commercial practice is unfair if—
(a) it contravenes the requirements of professional diligence; and
(b) it materially distorts or is likely to materially distort the economic behaviour of the average consumer...
(4) A commercial practice is unfair if—
(a) it is a misleading action under the provisions of regulation 5;
(b) it is a misleading omission under the provisions of regulation 6; ‘’

I have shown that ParkingEye have failed all of the above tests (my bold) which makes a charge under these circumstances prohibited and unenforceable. The Beavis case established that the penalty rule was certainly deemed ‘engaged’ in parking charge cases. Even if POPLA cannot consider consumer law (whyever not?) then the evidence shows that this charge is the very essence of ‘unconscionable’ which was the Beavis case definition of an unrecoverable penalty.

6) The signs are not prominent, clear or legible from all parking spaces
The signs and the machine tariff board (and the small screen itself on the malfunctioning machine) were contradictory and crowded with different terms, so this is not an example of ‘plain intelligible language’, contrary to the Consumer Rights Act 2015:

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68 Requirement for transparency (1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent. (2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.
It is submitted that the driver did not have a fair opportunity to read any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case where the terms were concise and far clearer with no tariff lists which is the primary prominent information on the board. In the Beavis case, the signs were unusually clear. The Supreme Court were keen to point out within hours of their decision that it related to that car park and those signs and facts only so it certainly does not supersede any other appeal/defence about a different car park:-

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The terms appear to be displayed inadequately at the machine, where only the tariffs are in comparatively large font. I put the operator to strict proof as to the size of the wording of the terms, which seem to be no larger than .40 font size going by this guide:-

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As evidence that this is inadequate notice, Letter Height Visibility is discussed here:-
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''When designing your sign, consider how you will be using it, as well as how far away the readers you want to impact will be. For example, if you are placing a sales advertisement inside your retail store, your text only needs to be visible to the people in the store. However, if you…want drivers on a nearby highway to be able to see them, design your letters at 3” or even larger.''

...and the same chart is reproduced here:-
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''When designing an outdoor sign for your business keep in mind the readability of the letters. Letters always look smaller when mounted high onto an outdoor wall''. ''...a guideline for selecting sign letters. Multiply the letter height by 10 and that is the best viewing distance in feet. Multiply the best viewing distance by 4 and that is the max viewing distance.''

Under Lord Denning's Red Hand Rule, the parking terms should have been simpler and effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear, concise and prominent in large lettering, as was found to be the case in the car park in 'Beavis'.
I put this operator to strict proof of where the car was parked and how their signs appeared on that date, at that time, from the angle of the driver's perspective when parked. Equally, I require this operator to show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up

Redx

I am afraid that you have still not gathered what POFA2012 does, otherwise 1) would not be there

check the NTK ,

DID IT COME WITHIN 14 DAYS , BY POST , TO THE KEEPER ? - YES

2) Has it got the prescribed POFA2012 paragraph on the back holding the keeper liable for the actions of the driver ? - I would say YES it does

assuming those 2 conditions are met, PE are holding the keeper legally liable for the actions of the driver , meaning they do not have to prove who was driving because the keeper is being held liable under POFA2012

THEREFORE, the arguments against PE include the following

NO LANDOWNER CONTRACT
POOR AND INADEQUATE SIGNAGE
FRUSTRATION OF CONTRACT
ANY BPA CoP failures
not the same as BEAVIS
ANPR ICO COMPLIANCE

etc

so anything about POFA2012 and the keeper isnt the driver is meaningless - there is no "golden ticket" under POFA2012 if they met the 2 conditions above for POFA2012 liability

this was why umkomaas asked about dates etc, then he asked why that sentence about 3 weeks was in there (because it was the probably scenario in the appeal you copied but does not apply here)

had PE failed the POFA2012 test, then it would be correct to throw the POFA2012 spanner into the works

so this isnt about who drove on the day and not blabbing, its about trying to win on a legal technicality that they may have failed on , or any errors in their evidence pack later down the line

so remove the POFA2012 parts as they are unlikely to be of any use, but double check that the NTK meets POFA2012 before doing so


also , put a numbered bullet point menu just before the main appeal points